PITTSBURGH – The City of Pittsburgh and five of its police officers have won conditional dismissal of a municipal liability claim brought by a woman who alleged she was unlawfully arrested because she doesn’t support President Trump.
Plaintiff Darian Balcom initially filed a complaint on May 2 in the U.S. District Court for the Western District of Pennsylvania against the City of Pittsburgh, Officers Gabe Figueroa and John Doe, under the First and Fourteenth Amendments to the U.S Constitution.
(An amended version of the complaint filed on Aug. 28 added Officers Leo, Donnolley, Smith and Zarate as defendants.)
According to the complaint, the plaintiff owns and manages rental properties in Pittsburgh, and was asked in writing by the owner of a neighboring building to feed dogs believed to be abandoned, on Dec. 18, 2017.
The plaintiff alleged when she entered the apartment, she found two cats inside that were not properly cared for – and then took the cats to an empty unit in her apartment building to care for them.
The suit stated five police officers entered the plaintiff’s apartment building without her consent and without a warrant, and accused the plaintiff of illegally entering the apartment and stealing the cats.
Balcom alleged that when Figueroa, a Pittsburgh police officer, asked her if she was a supporter of President Donald Trump and she responded that she was not, that Figueroua said he was glad Trump had won. When Figueroa spoke to Balcom's friend Matthew, out of earshot from the plaintiff, he allegedly told Matthew that while the plaintiff had not done anything wrong, she had "sassed" the police and that when a person does that, they get arrested. Figueroa also reportedly referred to the plaintiff as a "bleeding heart liberal." Matthew was not arrested or charged in the incident.
The suit stated Balcom was taken to the Allegheny County Jail, held overnight and was charged with felony trespassing, theft and burglary, though the charges were later withdrawn.
On Oct. 1, counsel for the defendants filed a motion to dismiss Balcom’s lawsuit, arguing she has no valid Section 1983 civil rights violation claims.
“Any claims against the City of Pittsburgh should be dismissed with prejudice for failure to properly allege a widespread municipal policy or custom that was the moving force behind the alleged Constitutional injuries. Plaintiff failed to state a claim for municipal liability under a failure to train, control or supervise theory. Further, the actions of one officer, claimed by the plaintiff to be evidence of a failure to train, control, or supervise, does not amount to a widespread policy or custom,” the dismissal motion read, in part.
“Plaintiff’s claims against Detective Figueroa and defendant Officers Zarate, Leo, Donnelly, and Smith should be dismissed for failure to state a claim and because the officers, as well as Detective Figueroa, are entitled to qualified immunity. Defendants respectfully request this Court dismiss all claims in plaintiff’s amended complaint.”
On April 28, the Court opted to throw out Balcom’s municipal liability claim under Monell, but denied the defendants’ motion in all other respects.
“Here, plaintiff generally asserts that the City of Pittsburgh has a policy, custom or practice of failing to address police officer misconduct that rises to the level of constitutional violations and provides a list of all lawsuits against the City of Pittsburgh for alleged officer misconduct spanning over a decade,” U.S. District Court Judge David S. Cercone said.
“Such generalities are insufficient to state a Monell liability claim. Plaintiff must identify a policy, custom or practice of the City of Pittsburgh which results in First Amendment retaliation, a violation of the Equal Protection Clause and/or false arrest/malicious prosecution under the Fourth Amendment to support her Monell claim, and not constitutional violations which share no factual nexus with the ones alleged her.”
Cercone allowed Balcom to further amend her complaint as to that point. In all other respects, the Court found Balcom had properly alleged claims of violations of her rights under the First and Fourth Amendments.
“In this instant matter, plaintiff alleges that she and Mr. Grebner engaged in the exact same conduct which led to plaintiff’s arrest – i.e., entering the abandoned apartment with the purpose of removing the abandoned pets and putting the pets in another apartment – yet he was not arrested. Further, Mr. Grebner was not alleged to have criticized police conduct or informed the officers of his nonsupport for a political leader that Officer Figueroa claimed to have supported,” Cercone stated.
“Plaintiff has alleged that Officer Figueroa told Mr. Grebner that he was going to arrest plaintiff because she ‘sassed’ Officer Figueroa after she objected to Officer Figueroa calling her ‘sweetheart.’ These facts are sufficient to show that plaintiff was discriminated on the basis of gender, because Mr. Grebner was not referred to as ‘sweetheart,’ which used in this context can be implied as a dismissive term used to describe women or girls.”
Cercone further denied the defendants’ motion to dismiss as to Balcom’s claims of false arrest, malicious prosecution and their own seeking of qualified immunity.
The plaintiff is seeking all reasonable sums due, attorney’s fees and court costs.
The plaintiff is represented by Margaret S. Coleman of the Law Offices of Timothy P. O’Brien, in Pittsburgh.
The defendants are represented by Emily McNally, Julie E. Koren, Michael E. Kennedy and Yvonne Schlosberg Hilton of the City of Pittsburgh’s Law Department, in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:19-cv-00506
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com